PROVISIONAL MEASURE 927 PUBLISHED ON MARCH 22, 2020

 

Provisional Measure 927 (MP 927) was published on March 22, 2020 and provides some alternatives to employment relationships to confront the state of emergency and force majeure circumstances that have arisen from the current COVID-19 pandemic.

 

 

 

  • Implementation of remote working;
In response to the economic effects of the pandemic, employers can adopt the following measures:
  • Granting of individual or collective vacation
  • Anticipation of public holidays and enjoyment of prolonged holidays
  • Usage of Hours Bank system
  • Suspension of occupational safety and health standards and regulations
  • Deferral of payment of the Employee Severance Indemnity Fund (FGTS – Fundo de Garantia por Tempo de Serviço)

 

 

 

According to information published by the Brazilian Government on March 23, 2020, Article 18 of MP 927, which initially provided for the suspension of employment agreements for four months – with respective interruption of salaries during such period for online professional qualification courses or programs – was revoked. Everything indicates that MP 927 will also go through other reformulations and a new Provisional Measure may also be enacted.

 

MP 927 comes into immediate effect and has effects of law. Brazilian Congress has 120 days to approve MP 927 and convert it in law. After that time, it will cease to be effective.

 

Below are the main aspects of each of the measures in effect.

 

REMOTE WORKING

 

Remote working/teleworking/homeworking (“Remote Working”) was classified as that where services are performed predominantly outside of the employer’s premises, using information and communication technologies.

 

The employer can, at its discretion and provided that the employee is notified in writing or by electronic means 48 hours in advance, change the onsite work regime to Remote Working. This rule will also be applied to interns and apprentices. The employer and the employee will have 30 days to regulate the terms and conditions, in the form of a signed agreement, that will govern the responsibility for the acquisition, maintenance or supply of technological equipment and the infrastructure necessary for the work to be performed remotely.

 

The period during which the employee uses apps and communication programs outside of his/her normal work hours shall not be accounted for as time available, state of readiness or on standby, except when this condition is provided for in an individual or collective agreement.

 

ANTICIPATION OF INDIVIDUAL OR COLLECTIVE VACATION

 

The employer may, at its discretion, in a formal, written communication or by electronic means in no less than 48 hours, grant vacation to its employees and even to those employees who have not completed the respective vacation acquisition period. The employer shall include in its communication the extension of the vacation period, which shall be no less than 5 consecutive calendar days.

 

The employer may also (i) opt to pay the one-third additional vacation bonus for the granted vacation up to the legal date of payment of the Christmas bonus (13th salary), (ii) analyze any request made by an employee to convert one third of vacation into a cash payment (abono pecuniário) during the same period mentioned in “item (i)”, and (iii) make the vacation payment by the fifth business day of the month subsequent to the beginning of the vacation period.

 

With respect to collective vacation, the employer may also, at its discretion, determine the respective vacation entitlement by notifying the affected group of employees by means of formal, written communication or by electronic means, within no less than 48 hours. Collective vacation shall not be governed by the terms of the Brazilian Consolidation of Labor Laws (CLT) with respect to (i) minimum period for vacation leave of 10 consecutive calendar days for collective vacation, maximum of two periods, as well as (ii) the necessary prior communication to the local Secretariat of Labor of the Ministry of Economy or to the labor union that represents the employees’ category.

 

ENJOYMENT AND ANTICIPATION OF PUBLIC HOLIDAYS

 

Notwithstanding an employee consent and by formal, written communication or electronic means within no less than 48 hours, employers may bring forward holidays resulting from non-religious federal, state, regional or municipal holidays. In relation to religious holidays, employee consent must be obtained in order to bring forward these dates and this shall be registered in individual written agreements. Holidays shall be used to offset the balance of banked hours.

 

hour bank SYSTEM

 

Employers may, during such period, interrupt their activities and implement a special means of compensation for the work day by means of the hour bank system, which is to be established in a formal collective or individual agreement, to compensate for hours worked during a period of up to 18 months, from the date the period of public emergency is declared to be ended.

 

 Suspension of occupational safety and health standards and regulations

 

The obligation to carry out hiring, occupational, clinical and periodical medical examinations has been suspended. The suspension of the medical examination upon dismissal is currently conditioned to the existence of a periodical medical examination performed within no less than 180 days prior to discharge. The medical physician responsible for the Occupational Health Medical Control Program (“PCMSO” – Programa de Controle Médico de Saúde Ocupacional) may determine situations of risk and exceptions in which such examinations shall be maintained.

 

DeferRAL of Employee Severance Indemnity Fund COLLECTIONS (FGTS – Fundo de Garantia por Tempo de Serviço)

 

According to MP 927, the FGTS collection by employers is suspended in relation to the months of March, April and May 2020, which are payable in April, May and June, respectively. These collections may be paid in up to six installments beginning in July 2020 and are subject to no legal increments/interests update. Limitation periods for debts of this nature is suspended for a period of 120 days, as are the validity periods of already issued clearance certificates.

 

OTHER TAX MEASURES

 

In addressing requests from several representative agencies and entities, MP 927 modified the provisions of Article 47 of Law 8212/91 to extend the validity of Tax Clearance Certificates. According to Article 37 of MP 927, Clearance Certificates issued by Brazil’s Federal Revenue Secretariat (SRFB – Secretaria da Receita Federal do Brasil) and by the National Treasury Attorney’s Office of the Ministry of Economy (PGFN – Procuradoria-Geral da Fazenda Nacional do Ministério da Economia) shall be valid for 180 days counted from the date of its issuance.

 

Additionally, in cases of public emergency, the agencies responsible for the issuance of clearance certificates are authorized to grant new extended periods of validity of these certificates, provided these extensions are published in joint acts between the agencies.

 

OTHER WORK-RELATED MEASURES

 

MP 927 also determines that:

 

  • The suspension of procedural deadlines for a period of 180 days from the date of disclosure for the submittal of defense and appeal in administrative proceedings originated from labor infraction notices and FGTS debit notifications.

 

  • Cases of contamination from COVID-19 shall not be considered occupational (related to work) except when it is proven a relation between the disease and the employer conduct.

 

  • Collective Bargaining Agreements having expired or expiring within 180 days from the publication of MP 927 shall, at the discretion of the employer, have their validity extended for 90 days after expiration.

 

  • For a period of 180 days from the publication of MP 927, labor inspectors shall act in an advisory manner except if infractions are perceived such as (i) lack of proper registration of employees (employment misclassification), (ii) situations of severe and imminent risks, (iii) occurrence of fatal work accident and (iv) work performed in conditions analogous to slavery or child labor.

 

We are at your disposal to clarify any doubts and discuss further the contents of this newsletter.

 

Bruno Sartori de C. Barbosa

Tax Partner

bruno.sartori@souzamello.com.br

+55 (11) 3074-5707

 

Juliana Dal Moro Amarante P. Freitas

Labor Head

juliana.amarante@souzamello.com.br

+55 (11) 3074-5720

 

 

This newsletter (i) presents a summary of legislative changes in Brazil, (ii) is intended for clients and members of Souza, Mello and Torres, and (iii) is not intended to provide legal advice on the matters dealt with herein and should not be interpreted as such.